R. v. Penunsi

R. v. Penunsi
Collection
Supreme Court Judgments
Date
2019-07-05
Neutral citation
2019 SCC 39
Report
[2019] 3 SCR 91
Case number
38004
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Newfoundland and Labrador
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91
Appeal Heard: February 21, 2019 Judgment Rendered: July 5, 2019 Docket: 38004
Between:
Her Majesty The Queen Appellant
and
Albert Penunsi Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Yukon Legal Services Society, Canadian Civil Liberties Association, Canadian Broadcasting Corporation and Canadian Association for Progress in Justice Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 86)
Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Martin JJ. concurring)
R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91
Her Majesty The Queen Appellant
v.
Albert Penunsi Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Yukon Legal Services Society,
Canadian Civil Liberties Association,
Canadian Broadcasting Corporation and
Canadian Association for Progress in Justice Interveners
Indexed as: R. v. Penunsi
2019 SCC 39
File No.: 38004.
2019: February 21; 2019: July 5.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal of newfoundland and labrador
Criminal law — Sureties to keep the peace — Application of arrest and judicial interim release provisions — Information laid against defendant under peace bond provisions of Criminal Code on basis of reasonable grounds to fear he would commit serious personal injury offence — Crown’s request to show cause why defendant ought to be detained or required to abide by certain conditions pending hearing on Information denied by provincial court judge — Whether judge can compel appearance of defendant to Information — Whether power of arrest and judicial interim release provisions of Criminal Code apply to peace bond proceedings — Criminal Code, R.S.C. 1985, c. C‑46, s. 810.2 .
P was nearing the end of a prison sentence when a peace bond Information under s. 810.2 of the Criminal Code was laid against him by an RCMP officer. The officer swore that there were reasonable grounds to fear P would commit a serious personal injury offence upon his release. Days before the end of his prison sentence, P was brought to court to respond to the Information, at which time a date was set for the hearing to determine whether the fear sworn to in the Information was reasonably held. However, the hearing was scheduled to take place after P’s release from prison. Wishing to avoid P’s unconditional release in the interim period, the Crown sought to show cause why P ought to be detained or required to abide by certain conditions pending the hearing. In denying the Crown’s request, the provincial court judge held that he did not have jurisdiction to subject P to a show cause hearing, concluding that the judicial interim release (“JIR”) provisions of the Criminal Code do not apply to peace bond proceedings.
The Crown sought judicial review of the provincial court judge’s decision. Prior to the application being heard, P voluntarily entered a recognizance with conditions at his peace bond merits hearing. Though the issue was moot, the Supreme Court of Newfoundland and Labrador granted declaratory relief accepting that a judge can compel a defendant’s initial appearance by issuing a warrant of arrest and thus, that the JIR provisions must apply to provide a procedure by which the defendant could subsequently be released. The Newfoundland and Labrador Court of Appeal allowed P’s appeal and restored the provincial court judge’s ruling.
Held: The appeal should be allowed and the order of the Court of Appeal quashed.
The arrest and JIR provisions of the Criminal Code apply, with necessary modifications, to peace bond proceedings under s. 810.2 of the Criminal Code and to all other peace bond proceedings. The appearance of a defendant to a peace bond Information may be compelled by a summons or a warrant of arrest. A judge or justice of the peace also has jurisdiction to subject a person to a show cause hearing when he or she has been arrested in relation to a peace bond Information and brought before the court.
Section 810.2(2) states that a provincial court judge who receives information under s. 810.2(1) “may cause the parties to appear before a provincial court judge”. However, there is no internal mechanism provided by Parliament within s. 810.2 by which a judge could compel the appearance of either party. Rather, the procedures for compelling attendance are found in Part XVI of the Criminal Code (“Compelling Appearance of Accused Before a Justice and Interim Release”). Instead of reproducing those procedures in the peace bond provisions, Parliament has chosen to apply the relevant Part XVI provisions to the peace bond scheme via a series of incorporating provisions. First, each peace bond provision (except for s. 810.02 ) expressly incorporates s. 810(5) . Then, s. 810(5) incorporates all provisions of Part XXVII (“Summary Convictions”), including s. 795 , into peace bond proceedings. Section 795 , in turn, incorporates provisions of Part XVI into Part XXVII. Therefore, ss. 810.2(8), 810(5), and 795 operate together to incorporate the provisions of Part XVI, which houses the summons, arrest, and JIR provisions, into Part XXVII, which houses the peace bond provisions.
However, s. 795 does not import Part XVI wholesale into Part XXVII, but rather, its wording limits its application: the provisions of Part XVI apply “in so far as they are not inconsistent with” Part XXVII, and “with any necessary modifications”. Accordingly, whether Part XVI applies to peace bond proceedings depends on the proper interpretation of the statutory language in s. 795. When that language is properly interpreted, it is clear that Parliament intended the arrest and JIR provisions under Part XVI to apply to peace bond proceedings. The provisions of Part XVI, with respect to compelling appearance, are not inconsistent with the peace bond provisions. To the contrary, they are necessary for the proper functioning of the scheme. Parliament would not have sought to create a scheme where a judge may hold a hearing to determine whether to order a defendant to enter into a recognizance to keep the peace, but make no provision whereby a judge can ensure the defendant attends the hearing. The application of the JIR provisions flows from the power of arrest under s. 507 of the Criminal Code . Where a defendant is arrested and detained, it follows that the judicial interim release scheme applies in order to release the defendant from custody. When applied with regard to the context and purpose of the peace bond scheme, the arrest and JIR provisions are a consistent and appropriate interim measure and necessary to the function and integrity of the peace bond proceedings. Furthermore, the arrest and JIR provisions apply to peace bond proceedings with simple modifications that do not amount to substantive change in the law. Accordingly, Parliament intended the arrest and JIR provisions under Part XVI to apply to peace bond proceedings.
The proper application of the arrest and JIR provisions in the context of peace bond proceedings must be guided by the policy objectives of timely and effective justice, and minimal impairment of liberty. To begin, when exercising the discretion whether to hold a hearing, the justice must consider whether the fear sworn to in the Information is reasonably held. Initiating a s. 810.2 peace bond proceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentence already determined to be proportionate. Without further evidence that the feared conduct will occur, a fear based solely on the offence for which a defendant is serving a sentence will not be sufficient. Where the justice exercises his or her discretion to cause the parties to appear, he or she will proceed to Part XVI of the Criminal Code which creates a ladder of increasingly coercive measures to compel appearance of a defendant before a court. At the low end of the ladder is a summons or an appearance notice issued by a peace officer which is the default process for compelling attendance. Where a defendant appears before a justice pursuant to a summons and the hearing is adjourned, the justice has no jurisdiction to impose interim conditions pending the merits hearing. If new information comes to light after the issuance of a summons, including at the initial hearing, which information raises concerns regarding the risk the defendant poses to the public or the likelihood of his or her attendance at the proceeding, an arrest warrant may be sought at that time.
Higher up the ladder is arrest, and release by an officer in charge on an undertaking or recognizance. Where an Information is laid before a justice and he or she finds that there are “reasonable grounds to believe that it is necessary in the public interest”, he or she may issue a warrant for the defendant’s arrest. This phrase must be interpreted in light of the context (where the subject is not suspected of having committed a criminal offence) and the purpose (to bring the subject forward to a hearing) of the provision operating within the peace bond scheme. Accordingly, it will only be necessary in the public interest to issue an arrest warrant where a case has been made out that the defendant will not otherwise attend court or that the defendant poses an imminent risk to the public. While placing a person under arrest inherently infringes his or her liberty, the infringement should be minimized to the extent possible.
Higher still up the ladder is detention and judicial interim release. In the rare case where a peace bond defendant is arrested and held over for bail, the JIR provisions under s. 515 provide the mechanism to release the defendant from custody. These provisions must be applied with due regard to ensuring the attendance of the accused at the peace bond hearing, and the ultimate goal of the peace bond scheme: to place the defendant under recognizance where an informant has a reasonably held fear that the defendant will commit certain harms. It would be inconsistent with the peace bond provisions to impose conditions aimed at protecting against a risk to the public that surpass the conditions that could be placed on a defendant at the conclusion of a hearing on the merits of the peace bond application. The default is release on the giving of an undertaking without conditions, unless the prosecutor (or the informant) can show cause why an order for more stringent release conditions should be made. For a condition to be reasonable, it must have a nexus with either ensuring the defendant’s attendance in court, or with the feared conduct sworn to in the Information. Under most circumstances, the final rung of the ladder would be a recognizance without sureties with reasonable conditions in the circumstances. The circumstances where detention is justified in the peace bond context must also mirror the possible outcomes provided for in the peace bond provisions. A judge has authority to order detention following a peace bond hearing only where the defendant fails or refuses to enter into a recognizance to keep the peace and be of good behaviour. Accordingly, the rare case where detention may be justified will likely only arise where a defendant refuses to sign a recognizance and therefore refuses to be bound by conditions related to ensuring attendance at the peace bond hearing, and/or to addressing in the interim the fear sworn to in the Information.
Cases Cited
Overruled: MacAusland v. Pyke (1995), 139 N.S.R. (2d) 142; approved: R. v. Budreo (1996), 27 O.R. (3d) 347, aff’d (2000), 46 O.R. (3d) 481, leave to appeal dismissed, [2001] 1 S.C.R. vii; R. v. Cachine, 2001 BCCA 295, 154 C.C.C. (3d) 376; R. v. Allen (1985), 18 C.C.C. (3d) 155; R. v. Wakelin (1991), 71 C.C.C. (3d) 115; R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389; referred to: Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Oland, 2017 SCC 17, [2017] 1. S.C.R. 250; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; Goodyear Tire & Rubber Co. of Canada v. The Queen, [1956] S.C.R. 303; R. v. S. (S.), [1990] 2 S.C.R. 254; Mackenzie v. Martin, [1954] S.C.R. 361; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Woking Justices, Ex p. Gossage, [1973] 2 All ER 621; R. v. Forrest (1983), 8 C.C.C. (3d) 444; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Parrill v. Genge (1997), 148 Nfld. & P.E.I.R. 91; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; 2747‑3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; R. v. Gill, [1991] B.C.J. No. 3255 (QL); R. v. Schafer, 2018 YKTC 12; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Goikhberg, 2014 QCCS 3891; R. v. Hebert (1984), 54 N.B.R. (2d) 251; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Hall (1996), 138 Nfld. & P.E.I.R. 80; R. v. Walsh, 2015 ABCA 385; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. Morales, [1992] 3 S.C.R. 711.
Statutes and Regulations Cited
Bill C‑55, An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, 2nd Sess., 35th Parl., 1996‑1997.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 83.29(4) , 83.3 , Part XVI, 493, Form 9, 499, 503, 504, 507, 507.1, 515, Part XVIII, 715.37(4), Part XXVII, 788, 795, 810, 810.01, 810.011, 810.02, 810.1, 810.2, 811.
Criminal Code, S.C. 1953‑54, c. 51, s. 717.
Criminal Code, 1892, S.C. 1892, c. 29, s. 959(2).
Justices of the Peace Act 1361 (Eng.), 34 Edw. 3, c. 1.
Authors Cited
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Evidence, No. 88, 2nd Sess., 35th Parl., December 3, 1996, at p. 88:4.
Canada. Public Prosecution Service. Public Prosecution Service of Canada Deskbook, Part III, c. 19, “Bail Conditions to Address Opioid Overdoses” (updated April 1, 2019) (online: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC39_1_eng.pdf).
Canadian Civil Liberties Association and Education Trust. Set Up to Fail: Bail and the Revolving Door of Pre‑trial Detention, by Abby Deshman and Nicole Myers, 2014 (online: https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC39_2_eng.pdf).
Chewter, Cynthia L. “Violence Against Women and Children: Some Legal Issues” (2003), 20 Can. J. Fam. L. 99.
Gauthier, Sonia. “L’engagement de ne pas troubler l’ordre public dans les causes de violence conjugale ayant fait l’objet d’un abandon des poursuites judiciaires criminelles (art. 810 C.CR.)” (2011), 23 C.J.W.L. 548.
Neumann, Peter M. “Peace Bonds: Preventive Justice? Or Preventing Justice?” (1994), 3 Dal. J. Leg. Stud. 171.
Orr, David. “Section 810 Peace Bond Applications in Newfoundland” (2002), 46 Crim. L.Q. 391.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Tutty, Leslie M. and Jennifer Koshan. “Calgary’s Specialized Domestic Violence Court: An Evaluation of a Unique Model” (2013), 50 Alta. L. Rev. 731.
APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Green, White and Hoegg JJ.A.), 2018 NCLA 4, 357 C.C.C. (3d) 539, [2018] N.J. No. 13 (QL), 2018 CarswellNfld 12 (WL Can.), setting aside a decision of Goodridge J., 2015 NLTD(G) 141, 373 Nfld. & P.E.I.R. 170, [2015] N.J. No. 337 (QL), 2015 CarswellNfld 385 (WL Can.). Appeal allowed.
Lisa M. Stead, for the appellant.
Jessica Tellez, for the respondent.
David W. Schermbrucker and Elaine Reid, for the intervener the Director of Public Prosecutions.
Written submissions only by Gregory J. Tweney and Stacey D. Young, for the intervener the Attorney General of Ontario.
Vincent Larochelle and Greg Johannson, for the intervener the Yukon Legal Services Society.
Scott Bergman, for the intervener the Canadian Civil Liberties Association.
Sean A. Moreman and Farid Muttalib, for the intervener the Canadian Broadcasting Corporation.
Ryan D.W. Dalziel and Joseph J. Saulnier, for the intervener the Canadian Association for Progress in Justice.
The judgment of the Court was delivered by
Rowe J. —
I. Background
[1] This appeal raises the question of whether the judicial interim release (“JIR”) provisions — and by necessary implication, the power of arrest — under Part XVI of the Criminal Code, R.S.C. 1985, c. C-46 , apply to provisions under the heading “Sureties to Keep the Peace” in Part XXVII of the Criminal Code (“peace bond provisions”). The JIR provisions (commonly referred to as the bail provisions) require a judge to release an accused person pending trial without conditions unless the Crown can demonstrate why some more restrictive measure is necessary (for example, an order to abide by interim conditions, or pre-trial custody). A peace bond is an order from a judge to keep the peace, be of good behaviour and abide by certain conditions. A peace bond may be ordered where the judge is satisfied on the evidence that an informant has reasonable grounds to fear that the defendant will cause harm to another person. Peace bonds are not “offences” under the Criminal Code . For the reasons that follow, I conclude that the arrest and JIR provisions apply, with necessary modifications, to peace bond proceedings. The peace bond provision at issue in this appeal is s. 810.2 . However, except where otherwise specified, the following applies to all peace bond provisions.
[2] Mr. Penunsi was nearing the end of a prison sentence when a peace bond Information under s. 810.2 of the Criminal Code was laid against him by a Royal Canadian Mounted Police (“RCMP”) officer. In the Information, the officer swore that there were reasonable grounds to fear Mr. Penunsi would commit a serious personal injury offence upon his release. The sentence Mr. Penunsi was serving at the time was for breach of a prior s. 810.2 peace bond. A judge issued a warrant for Mr. Penunsi’s arrest. However, the warrant was never executed, as Mr. Penunsi was already in custody.
II. Judicial History
[3] Days before the end of his prison sentence, Mr. Penunsi was escorted by the RCMP to court to respond to the Information, at which time a date was set for the hearing to determine whether the fear sworn to in the Information was reasonably held. However, the hearing was scheduled to take place after Mr. Penunsi’s release from prison. Wishing to avoid Mr. Penunsi’s unconditional release in the interim period, the Crown sought to show cause why Mr. Penunsi ought to be detained or required to abide by certain conditions pending the hearing. In denying the Crown’s request, the provincial court judge held that he did not have jurisdiction to subject Mr. Penunsi to a show cause hearing, concluding that the JIR provisions do not apply to peace bond proceedings. He added that even if he did have jurisdiction, he would decline to exercise it.
[4] The Crown sought judicial review of the provincial court judge’s decision, requesting certiorari and a declaration that the JIR provisions are applicable to proceedings under s. 810.2 , and that the judge was under a statutory duty to conduct a show cause hearing at the request of the Crown. Prior to the certiorari application being heard, Mr. Penunsi voluntarily entered a recognizance with conditions at his peace bond merits hearing.
[5] Though the issue was moot, the Supreme Court of Newfoundland and Labrador granted declaratory relief (2015 NLTD(G) 141, 373 Nfld. & P.E.I.R. 170). The court accepted that a judge can compel a defendant’s initial appearance respecting a s. 810.2 Information by issuing a warrant of arrest. Consequently, the JIR provisions must apply to provide a procedure by which the defendant could subsequently be released. Mr. Penunsi appealed.
[6] The Newfoundland and Labrador Court of Appeal restored the provincial court judge’s ruling. The court found that the provisions in Part XVI of the Criminal Code (“Compelling Appearance of Accused Before a Justice and Interim Release”) were inconsistent with the peace bond scheme and thus did not apply to it. The court held that it would be inconsistent to detain an individual in respect of a proceeding in which incarceration was not available as a sanction. It held that the modifications to the statutory language required to enable a judge to subject a defendant named in a peace bond Information to a show cause hearing would be “of such a nature and character as to effectively alter the law respecting the power of arrest” (2018 NLCA 4, 357 C.C.C. (3d) 539, at para. 78).
III. Parties’ Submissions
[7] Both parties urge upon this Court to decide the issue despite the fact that it is moot.
[8] The appellant Crown submits that the Newfoundland and Labrador Court of Appeal erred in finding that Part XVI of the Criminal Code does not apply to peace bond proceedings. In its view, s. 810.2(2) states that a judge may “cause the parties to appear” to answer to a sworn peace bond Information, and thus authorizes a judge to use the procedures set out in Part XVI to bring the necessary people to court for the hearing, either pursuant to a summons or an arrest warrant. No major modifications are required to the statutory language in order to apply the relevant provisions under Part XVI to the peace bond provisions. The Crown points to a number of appellate decisions that support its position. It asks this Court to follow the weight of judicial authority and answer the question of whether the arrest and JIR provisions apply to peace bond proceedings in the affirmative.
[9] The respondent, Mr. Penunsi, relies on a textual analysis of the statutory language. He argues that the arrest and JIR provisions of the Criminal Code permit the exercise of those powers only against an “accused” as that term is defined in s. 493 (in Part XVI). The definition of “accused” in s. 493 includes (a) a person to whom a peace officer has issued an appearance notice (in lieu of arrest); and (b) a person arrested for a criminal offence. In his submission, “accused” cannot include a defendant to a peace bond proceeding, because a defendant to a peace bond proceeding is not charged with committing a criminal offence. In the respondent’s view, the modifications necessary for the JIR provisions to operate within the peace bond scheme extend beyond mutatis mutandis. The respondent emphasizes the holding in MacAusland v. Pyke (1995), 139 N.S.R. (2d) 142 (S.C.), that applying the JIR provisions to peace bond proceedings would potentially subject a defendant to a greater infringement of liberty in the interim than would be possible following a hearing of the peace bond application on the merits (para. 31). This outcome, as put by the Court of Appeal and echoed by the respondent, would be “illogical and absurd” (para. 58, cited in R.F., at para. 77).
IV. Analysis
A. Mootness
[10] “The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17). The expenditure of judicial resources on a moot point is warranted in cases that raise important issues but are evasive of review (see, e.g., Doucet-Boudreau, at para. 22; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46).
[11] This Court has recently held in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, and R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, that issues of judicial interim release can be evasive of review due to their temporary nature. Both the appellant and the respondent urge this Court to reconcile the divide in the jurisprudence on the issue central to this appeal despite the fact that the determination will have no immediate impact on Mr. Penunsi. I agree with the parties that this is an occasion where the significance of the issue and the inconsistency in the appellate jurisprudence merits the expenditure of resources to decide the moot issue (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 50; Borowski).
B. Peace Bonds and the Criminal Power
[12] The peace bond is an instrument of preventive justice. The prevention of crime is a well-recognized purpose of the criminal law. As Locke J. explained in Goodyear Tire & Rubber Co. of Canada v. The Queen, [1956] S.C.R. 303: “The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime” (p. 308; see also R. v. S. (S.), [1990] 2 S.C.R. 254, at p. 282).
[13] In Mackenzie v. Martin, [1954] S.C.R. 361, Kerwin J. (as he then was) wrote that a peace bond delivers preventive justice by “obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behaviour” (p. 368, citing W. Blackstone, Commentaries on the Laws of England (16th ed. 1825), at p. 251, cited in R. v. Parks, [1992] 2 S.C.R. 871, at p. 911, per Sopinka J.).
[14] R. v. Budreo (1996), 27 O.R. (3d) 347 (Ont. Ct. Gen. Div.) (“Budreo S.C.”), dealt with a constitutional challenge to the peace bond under s. 810.1 of the Criminal Code . Then J. referred to the preventative nature of the peace bond:
The court in considering what constitutes fundamental justice in a liberal society must refer to the history of a particular power and the policy rationale behind it. Preventive justice is the exercise of judicial power not in order to sanction past conduct but to prevent future misbehaviour and harm. The exercise of this power is justified by the risk of harm or dangerousness posed by certain individuals . . . . [pp. 368-69]
This was echoed by Laskin J.A. in his decision affirming the reasons of Then J. (R. v. Budreo (2000), 46 O.R. (3d) 481 (C.A.) (“Budreo C.A.”), leave to appeal dismissed, [2001] 1 S.C.R. vii):
The criminal justice system has two broad objectives: punish wrongdoers and prevent future harm. A law aimed at the prevention of crime is just as valid an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 , as a law aimed at punishing crime. [Footnote omitted; para. 27]
[15] The modern peace bond can be traced back as early as the 1300’s, to the common law practice of “binding over”. “Binding over” described a judicial authority to make preventive orders to maintain social order despite no specific crime having been charged, aimed at preventing a wide range of undesirable activity. The earliest reference to the practice was in the Justices of the Peace Act 1361 (Eng.), 34 Edw. 3, c.1, where the power was granted to justices to “take of people who came before them sufficient mainprise of their good behaviour towards the king and his people” (Law Commission No. 222, Binding Over: Report on Reference under Section 3(1)(e) of the Law Commissions Act 1965 (1994), cited in D. Orr, “Section 810 Peace Bond Applications in Newfoundland” (2002), 46 Crim. L.Q. 391, at p. 391).
[16] In 1892, existing English law was codified in the Criminal Code , including the common law peace bond. Section 959(2) of the Criminal Code, 1892, S.C. 1892, c. 29, provided:
2. Upon complaint by or on behalf of any person that on account of threats made by some other person or on any other account, he, the complainant, is afraid that such other person will do him, his wife or child some personal injury, or will burn or set fire to his property, the justice before whom such complaint is made, may, if he is satisfied that the complainant has reasonable grounds for his fears, require such other person to enter into his own recognizances, or to give security, to keep the peace, and to be of good behaviour, for a term not exceeding twelve months.
[17] The 1892 peace bond provision bears strong similarity to the modern day peace bond provisions, but like the common law peace bond, there was no requirement to hold a hearing. Where a justice was satisfied that the “complainant” had a reasonably founded fear, the justice could require the “other person” to enter into a recognizance to keep the peace and to be of good behaviour for a period not exceeding 12 months.
[18] Regarding the procedural requirements of common law peace bonds, Chief Justice Lamer, writing in dissent in Parks, cited a decision of the English Court of Appeal which noted:
That is not to say that it would not be wise, and indeed courteous in these cases for justices to give such a warning; there certainly would be absolutely no harm in a case like the present if the justices, returning to court, had announced they were going to acquit, but had immediately said “We are however contemplating a binding-over; what have you got to say?” I think it would be at least courteous and perhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said that a failure to give such a warning is a breach of the rules of natural justice. [Emphasis in original; pp. 893-94, quoting R. v. Woking Justices, Ex p. Gossage, [1973] 2 All E.R. 621 (Eng. C.A.), at p. 623.]
[19] In the 1954 amendments to the Criminal Code, S.C. 1953-54, c. 51, the phrases “cause the parties to appear”, “evidenced adduced”, and reference to the court “before which the parties appear” were introduced into s. 717 (a predecessor of s. 810). These amendments resulted in a more procedurally robust peace bond scheme; one where a hearing was required so that the defendant could have the opportunity to respond to the alleged fear and contest the peace bond. As will be discussed below, I respectfully cannot accept the conclusion of the Court of Appeal that the enactment of provisions which include the phrase “cause the parties to appear” (e.g., ss. 810(2) and 810.2(2)) are “special provisions to compel appearance”, or that their enactment created a unique “scheme for dealing with peace bond Informations” (para. 50) to compel the attendance of a defendant to a hearing. Rather, the introduction of the wording most likely reflected the requirement that, before ordering a defendant to enter a recognizance, a judge must hold a hearing to determine whether the informant’s fear is reasonably founded.
[20] In addition to the general peace bond, based on fear of personal injury or damage to property (s. 810), Parliament has since the early 1990’s added a number of specialized peace bonds respecting: fear of a criminal organization offence, including intimidation of a justice system participant or a journalist (s. 810.01); fear of a terrorism offence (s. 810.011 and s. 83.3 )[1]; fear of an offence related to forced marriage or child marriage (s. 810.02); fear of a sexual offence committed against a minor (s. 810.1 ); and fear of serious personal injury (s. 810.2 ).
[21] Each of the peace bonds shares the following common features.
[22] First, an Information may be laid by any person (the informant) where he or she has reasonable grounds to fear that another person (the defendant) will cause certain types of injury or damage to property, or commit certain types of offences. As I will discuss below, in certain instances, the consent of the Attorney General is required to lay the Information (e.g., s. 810.2(1)).
[23] Second, a judge (or justice of the peace in the case of a s. 810 peace bond) who receives an Information may “cause the parties to appear” and conduct a hearing on the merits of the application (e.g., s. 810.2(2))[2]. If satisfied by the evidence adduced at the hearing that the informant has reasonable grounds for his or her fear, the judge may order the defendant to enter a recognizance to keep the peace and be of good behaviour for a period not exceeding 12 months (e.g., s. 810.2(3))[3], and place additional conditions on the defendant as prescribed by statute (e.g., s. 810.2(4.1)).
[24] Third, where a defendant fails or refuses to enter into a required recognizance, the judge may commit him or her to a term of imprisonment not exceeding 12 months (e.g., s. 810.2(4)).
[25] Finally, s. 811 provides that a person who breaches a peace bond faces up to four years’ imprisonment where the charge proceeds by way of indictment and up to 18 months’ imprisonment where the charge proceeds by way of summary conviction.
C. Statutory Scheme
[26] The officer who swore the Information against Mr. Penunsi did so under s. 810.2 , which reads:
Where fear of serious personal injury offence
810.2 (1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.
Appearances
(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.
Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.
Duration extended
(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.
Refusal to enter into recognizance
(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.
Conditions in recognizance
(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant
(a) to participate in a treatment program;
(b) to wear an electronic monitoring device, if the Attorney General makes the request;
(c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;
(d) to return to and remain at his or her place of residence at specified times;
(e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
(g) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.
Conditions — firearms
(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.
Reasons
(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition.
Condition — reporting
(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.
Variance of conditions
(7) A provincial court judge may, on application of the informant, of the Attorney General or of the defendant, vary the conditions fixed in the recognizance.
Other provisions to apply
(8) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section.
While subs. (2) states that a provincial court judge “may cause the parties to appear”, there is no internal mechanism provided by Parliament by which a judge could compel appearance of either party. The procedures for compelling attendance are found in Part XVI of the Criminal Code .
[27] Instead of reproducing the procedures of Part XVI in the peace bond provisions, Parliament has chosen to apply the relevant provisions regarding compelling attendance to the peace bond scheme via a series of incorporating provisions. The drafting technique of incorporation by reference is “an economical one for Parliament to employ” (R. v. Cachine, 2001 BCCA 295, 154 C.C.C. (3d) 376, at para. 28).
[28] Parliament has chosen a rather circuitous route to incorporate the necessary procedures to cause the parties to appear. Each peace bo